Bill Tammeus writes about religion and ethics.

March 07, 2014

The 'religious liberty' debate: 3-7-14

The current culture-wars debate about religious liberty has been marred by lack of clarity, by a widespread failure to recognize the complexity of the issues and by oversimplification that sometimes is so vast as to be purposefully misleading.

I think it's time for everyone to step back, take a deep breath and revisit what's at stake.

First, let's recognize once more that religious freedom is a bedrock principle of our nation. Indeed, it's not much of an exaggeration to say that when the first European settlers arrived here and began to violate the freedom of Native Americans to occupy the lands they had occupied for centuries, it was to gain religious freedom that they felt they had lost in Europe.

By the time those early settlers began to acknowledge that a theocracy would be impossible here because of the religious diversity of the new residents, the idea of religious freedom was beginning to mean freedom for everyone -- not just those who wanted to get away from the religious strictures of this or that sect in Europe.

So the idea of guaranteeing religious liberty and of the requirement that the government not mandate an established religion got written into our Constitution. Thank, well, God.

In some ways, religious freedom is like freedom of speech in that it is designed to protect unpopular minorities. If everyone spoke in ways that offended no one the free speech guarantees of the Constitution wouldn't mean much.

Similarly, if everyone agreed on the primary matters of theology and practice, there never would be a court case in which judges were asked to decide matters of religious liberty. But because some religious groups want to use peyote in their ceremonies or allow men to have multiple wives or do other things that seem out of the mainstream of religious practice and thought, the courts seem never to be without some religious freedom case to decide.

And yet there are limits to both freedom of religion and speech. As is famously said, your free speech does not allow you to cry "Fire!" in a crowded theater. Nor would your religious liberty allow you to sacrifice live human children to the God Moloch. There are certain common-good legal standards that trump completely unbridled religious freedom and freedom of speech. And should.

So we come to the recent pile of legislation proposed in various states that would protect people from litigation if they could prove in court that, as the recently vetoed Arizona bill says, they acted or refused "to act in a manner substantially motivated by a religious belief."

Although that bill didn't spell this out (really, it didn't), it was widely understood to be an effort to protect people from suit if they refused in their businesses to serve gay or lesbian people because they believe homosexuality is a sin. (Is it a sin? Some say yes. I say no -- and here's why I say that.)

As this media-critical, hyper-ventilating blog suggests, however, it's not that simple. I'm not persuaded that this blogger has it all right, but she makes the valid point that media coverage of religious matters tends to be inadequate at best and misleading at worst.

What Americans finally have to decide (I think they've pretty much decided this already) is whether certain religious beliefs allow people to discriminate against certain classes of their fellow citizens when providing paid-for services to the public. There were good reasons to adopt the federal Religious Freedom Restoration Act in the 1990s, and I supported that and still do. There may be similarly good reasons to have state acts that also protect people of faith from being what the law calls "substantially burdened" by acts of the government. One question raised by the current controversy is whether a person of faith who thinks homosexuality is a sin is being "substantially burdened" by selling wedding cake to a same-sex couple. (I'd love to see that one argued in court.)

The point is that we should take some time to think through in each case whether we are asking people to violate sincerely held religious beliefs and, if we are, whether we can justify that on the basis of the common good and/or because acting out those religious beliefs would violate other foundational human rights or the laws on which our society depends.

Freedom of speech may, indeed, allow people to say terrible things or even to burn flags. And freedom of religion may result in acts that offend most of us.

But unless we want to gut our constitutional protections in these areas, we're going to have to take these matters one careful step at a time and not rush to judgment based on the screechings of either the far left or the far right.

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IS HOBBY LOBBY PLEA DEAD?

Speaking of religion and the courts, Linda Greenhouse, who has covered the U.S. Supreme Court for The New York Times, writes that the court is almost obliged now to rule against Hobby Lobby in its controversial case. We'll see. I'm willing for her to try to predict the court, but I won't.

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Who is Bill?I'm the former Faith columnist for The Kansas City Star. For a more detailed bio, look under the "Check this out" headline below. My Twitter handle is @BillTammeus. Friend me on Facebook and you'll see this blog every day in your feed.